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Porn-star cop's job not saved by First Amendment

Smut site had pubic - but not public - concern

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At least he's got a fun career as an internet porn star to fall back on.

In a decision handed down last week, the US Court of Appeals for the Ninth Circuit determined that an Arizona police department did not violate one of its officer's civil rights when it fired him after discovering that he ran and participated in a porn site with his wife.

The officer, Roger Dible, and his wife, Megan, ran a website that provided photographs depicting Megan Dible - under the pseudonym "Katelynn" - in sexual poses and having sex with her husband, other women and "inanimate objects". The Dibles started the website in late 2000 after entering into an agreement with CDM Networks to operate the site.

Dible never notified his superiors at the Chandler Police Department of his extracurricular activities, although he did apparently tell a fellow officer about it, and even convinced the other officer to start a website of his own.

Not surprisingly, rumors about the site began to fly around the department, and eventually made their way to the ears of department officials. They began an investigation and questioned Dible about the site. He initially attempted to mislead the investigators, but they soon discovered his involvement with the site and placed him on administrative leave.

Porn whore

Soon, the press also got wind of the site and began running reports identifying Dible as a local police officer and detailing his activities related to the site. After the segments aired, Chandler police officers began to report low morale amid taunts from civilians. One female officer even reported that a suspect called her a "porn whore".

Needless to say, Dible was fired shortly after the reports hit the news. He and his wife then filed this lawsuit, alleging that the department violated their First Amendment right to freedom of speech. The district court granted summary judgment for the department, and the Dibles appealed.

After reviewing the case, the Ninth Circuit again decided for the department. The court held, in a paraphrase of Justice Oliver Wendell Holmes, that while Dible may have the Constitutional right to operate the porn site, he does not have the Constitutional right to employment as a police officer while doing it.

Government employees don't give up their Constitutional right to free speech simply by virtue of becoming public employees. When a government employee is sanctioned because of his speech activities, two potential analyses come into play, depending on whether the speech was related to the employment or not. The Ninth Circuit, not wanting to determine the difficult question of whether the porn site was related to Dible's employment as a police officer, went through both analyses.

In the case of related speech, a government employee is entitled to a balancing test weighing the rights of the employee against the government's interest in providing efficient government services. For related speech, this test only comes into play when the subject of the speech touches on a matter of public concern, however.

Here, the Ninth Circuit panel determined that running a porn site for fun and profit did not constitute a matter of public concern. Because of that, the court had no need to balance the interests of the parties - no public concern, no constitutional violation.

The members of the Ninth Circuit panel divided over the next analysis, though. The second analysis concerns speech that is unrelated to government employment, and also involves a balancing test between the speech involved and the government's interest in providing services.

Heckler's veto

The majority held that the government had a strong interest in providing an effective police force, and that the Dibles' speech didn't have much weight to counter that interest since running a porn site doesn't quite deserve the same force in the analysis as, say, engaging in a political debate or writing articles on environmental policy.

Since Dible's activities, according to the court, had undermined the respect that the public held for the department and emboldened individuals to openly mock officers, Dible's speech had adversely affected the mission of the police department and the department was justified in canning him based on the porn site.

A concurring judge disagreed with this analysis, arguing that the court's reasoning allowed for government suppression of speech based on a "heckler's veto". That is, by basing its decision on the reactions of the public, the court had approved of censorship simply because members of the public disagreed with the content of the speech.

The concurring judge still agreed with the outcome of the case, however, finding it appropriate to fire Dible based on his lies to investigators, regardless of the contents of his website.

So whichever way the analyses went, the Dibles were still gonna get screwed.®

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